788 F.3d 1365
Fed. Cir.2015Background
- Bernard, a Forest Service firefighter, settled a Board case in 2011 reducing his removal to a 14‑day suspension and restoring non‑supervisory duties with back pay and fees.
- The settlement included good‑faith cooperation to implement the terms and a promise Bernard could apply for future supervisory positions and fire assignments.
- Under Forest Service policy, red cards (incident qualifications) determine eligibility for assignments; Bernard did not receive a renewed red card in 2012 despite completing the annual safety course.
- An audit suggested insufficient hard‑copy documentation supporting Bernard’s logged qualifications; in March 2012 a renewed red card was issued for only seven of the original eleven positions.
- Bernard petitioned the Board to enforce the settlement, alleging breach and potential retaliation; he sought limited discovery regarding the audit and missing records.
- The administrative judge denied enforcement, and the Board affirmed, holding Bernard did not need discovery and that he bypassed any discovery process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board abused its discretion by denying discovery | Bernard argues discovery was required to prove breach and retaliation. | Bernard bypassed discovery and the Board regulations do not guarantee direct discovery in enforcement. | Yes; the Board abused discretion by denying discovery. |
| Whether Bernard proved a breach of the settlement agreement | Bernard contends the agency failed to issue a complete red card, breaching good faith and equal‑opportunity terms. | The agency challenges the sufficiency of Bernard’s breach evidence and the Board’s standard for enforcement. | Remanded for further proceedings to determine breach with appropriate evidence. |
| What remedy is appropriate on remand | Board authority could restore red‑card qualifications and provide back pay or other relief. | Damages are not within the Board’s typical remit absent breach proven to warrant restoration. | Remand to determine whether enforcement relief including restoration or back pay is warranted. |
Key Cases Cited
- Star Fruits S.N.C. v. United States, 393 F.3d 1277 (Fed. Cir. 2005) (abuse of discretion standards and review of agency actions)
- King v. Department of Navy, 98 MSPR 547 (MSPR 2005) (enforcement discovery rights in MSPR proceedings)
- Ernst v. Department of Treasury, 69 MSPR 133 (MSPR 1995) (employee not entitled to discovery in enforcement proceedings)
- Forston v. Department of Navy, 60 MSPR 154 (MSPR 1993) (discovery in enforcement contexts discussed)
- Covert v. Department of Navy, 31 MSPR 376 (MSPR 1986) (early views on discovery in enforcement)
- Young v. U.S. Postal Service, 113 MSPR 609 (MSPR 2010) (administrative judge may grant discovery in enforcement cases)
- Lary v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006) (MSPB penalties and back pay/relief authority)
- Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328 (Fed. Cir. 2000) (court may require explanation where order void of rationale)
- Smith v. Department of Army, 458 F.3d 1359 (Fed. Cir. 2006) (enforcement relief considerations and agency policies)